Non-Participating Preferred, also known as Straight Preferred, is a form of preferred stock commonly used in startup and venture capital financing. Unlike Participating Preferred, this class of stock offers investors a liquidation preference, but no additional participation in the remaining proceeds upon a liquidation event.

Definition and concept:

Non-participating preferred shares grant investors a liquidation preference that typically equals the amount of their original investment. In the event of a liquidation event (e.g. sale or liquidation of the company), the holders of these shares have the choice between: 1. receiving their liquidation preference
2. Conversion of their preference shares into ordinary shares and participation in the distribution of proceeds on a pro rata basis

How it works:

Assume an investor invests EUR 1 million for 20% non-participating preferred shares in a company. With exit proceeds of EUR 10 million, the investor would have the choice between: 1. Receiving the EUR 1 million liquidation preference
2. Conversion into ordinary shares and receipt of 20% of the total proceeds, i.e. EUR 2 million In this scenario, the investor would choose the conversion option as it is more advantageous.

Importance for startups and investors:

For investors: – Downside protection through the liquidation preference – Potential for higher returns on very successful exits through conversion – Simpler structure compared to Participating Preferred For startups:
– More balanced distribution of exit proceeds between investors and founders
– Attractive for follow-on financing due to the clearer capital structure
– Stronger alignment of interests between investors and founders Variants of Non-Participating Preferred: 1. Standard Non-Participating: Simple choice between liquidation preference and conversion
2. Multiple Liquidation Preference: Liquidation preference can be a multiple of the original investment (e.g. 2x or 3x)
3. Cumulative Dividends: Dividends not paid out are added to the liquidation preference

Negotiating points:

1. amount of liquidation preference (1x, 2x, 3x the original investment) 2. dividend rights and their cumulative nature 3. conversion ratio into ordinary shares 4. automatic conversion conditions (e.g. in the case of a qualified IPO) 5. voting rights and other control rights

Advantages and disadvantages:

Advantages for investors: – Risk reduction through liquidation preference – Flexibility through conversion option – Simpler valuation and administration compared to Participating Preferred Advantages for startups:
– Less dilution of founders and employees in case of successful exits
– More attractive for future investors due to clearer capital structure
– Better alignment of interests of all stakeholders Disadvantages:
– Potentially lower returns for investors compared to Participating Preferred
– Potential complexity in determining the optimal conversion timing

Market trends and developments:

1. increasing popularity: non-participating preferred is becoming the standard in many startup ecosystems 2. focus on fairness: tendency towards structures that enable a more balanced distribution of success 3. sector-specific adjustments: Variations depending on the startup’s industry and risk profile 4. Global harmonization: Alignment of practices in different startup hubs around the world

Legal and tax aspects:

– Careful structuring of shareholder rights in the articles of association and ancillary agreements – Consideration of tax implications in the conversion and distribution – Compliance with local company law and stock exchange regulations (in the case of planned IPOs)

Strategic considerations for start-ups:

1. long-term planning: consideration of the impact on future financing rounds and exit scenarios 2. negotiation strategy: balancing liquidation preference and other investor demands 3. capital structure management: avoidance of overly complex structures through consistent use of non-participating preferred 4. transparency: clear communication of implications to all stakeholders, including employees with participation programs

Best practices for investors:

1. risk-return assessment: Evaluation of whether the liquidation preference offers sufficient protection 2. Portfolio strategy: Adaptation of the preference structure to the risk profile of the investment 3. Flexibility: Willingness to adapt the conditions in later financing rounds 4. Promote alignment: Focus on structures that support an alignment of interests with founders and other investors

Conclusion:

Non-Participating Preferred represents a balanced approach to startup financing that takes into account both the protection of investors and the interests of the founders and the company. This structure provides downside protection for investors while maintaining the opportunity for higher returns on successful exits. For startups, Non-Participating Preferred offers the advantage of a clearer and fairer capital structure that facilitates future financing and exit options. The reduced complexity compared to Participating Preferred can lead to a better alignment of interests between all stakeholders and thus promote the long-term growth and success of the company. In an evolving startup ecosystem that increasingly emphasizes sustainability and fair practices, Non-Participating Preferred is establishing itself as a standard tool that maintains the balance between investor protection and company growth. Careful structuring and negotiation of this class of equity remains an important aspect of structuring successful startup financings.